Sometime in 2003, Portland General
Electric (PGE) discovered sewage in an underground utility vault that was
buried in front of the Hartmann building. Later that year, the City of
Portland conducted testing that revealed a break in a sewer service lateral
that connected the Hartmann Building to the city sewer system. In November
2003, the city informed Hartmann that the damaged lateral had caused sewage to
leak into the utility vault and that he had an obligation to fix it. Hartmann,
for his part, investigated the problem and confirmed the break; however, he
denied that he had an ownership interest in the damaged lateral or any
responsibility to repair it.

Beginning in the spring of 2004, the
Smiths discovered a sewage odor in their restaurant, which emanated from sewage
leaking from the damaged lateral. The Smiths complained to Hartmann in April
2004, but he again denied that it was his responsibility to repair the
lateral. The smell continued until October 2004, when PGE received a permit
from the city to replace approximately 11 feet of the sewer service lateral
running between the curb line in front of the Hartmann Building and the corner
of the utility vault. After the repair, the odor abated, but the damage had
been done. The sewer smell between April and October 2004 caused a decline in
business and loss of goodwill from which the restaurant was unable to recover.

The sewer line break spawned
litigation involving Hartmann, PGE, Subway, and the Smiths, among others.(2)
For purposes of this appeal, the only relevant claims are those brought by the
Smiths against Hartmann--claims for breach of lease, trespass, and nuisance
based on Hartmann's refusal to repair the sewage leak or otherwise prevent the
sewer odor from entering their restaurant. At trial, one of the central issues
was whether the City of Portland had accepted responsibility for repair of the
damaged sewer service lateral under its code. Hartmann took the position that,
in 2002, the city assumed responsibility for the repair of all sewer service
laterals and that he was therefore not liable to the Smiths. Portland City
Code (PCC) 17.32.055(B)(1)(a) provides:

"1. Commencing on October 25, 2002, the City assumes
responsibility for inspection, maintenance, and repair of:

"a. Sewer service laterals,
unless the BES Chief Engineer finds there is evidence that the lateral:

"a. is designated by the
City Engineer as 'private' when it is permitted by the City, constructed by the
property owner, and approved by the City,

"b. is not
accepted by the City as a public facility, and

"c. remains the responsibility of the property
owner it serves."

PCC 17.32.055(A).

At trial, the city engineer, Ryan,
testified that he had, in fact, found that the sewer service lateral was a
"private sewer service lateral," based on his review of the city
records (including maps, old permits, and maintenance records) and the
applicable code definition. The city records, he explained, led him to
conclude that the lateral had originally been constructed as a private sewer
system, albeit in the public right of way. He further testified that there was
no evidence that the private sewer system had ever been accepted by the City as
a public facility--the relevant inquiry under paragraph b. of the definition of
a "private sewer service lateral." Based on that evidence (and lack
of evidence), he found that the sewer service lateral had been
"constructed as a private sewer service lateral" within the meaning
of the code and, therefore, remained the responsibility of the property owner,
Hartmann.

On cross-examination, Ryan
acknowledged that he had not found any evidence to satisfy paragraph a. of the
definition of "private sewer service lateral"--i.e., he found
no evidence that the lateral was ever "designated by the City Engineer as 'private'
when it [was] permitted by the City, constructed by the property owner, and
approved by the City." However, in Ryan's view, that proof was
unnecessary because the paragraphs of the definition were disjunctive. He
explained, "[Y]ou have to realize that the City Code looks both forwards
and backwards, and I would read that [paragraph b.] tells me what to do in the
circumstance with an existing situation that ownership is indeterminate."

The trial court ultimately found in
favor of the Smiths on their claims for breach of lease, trespass, and
nuisance. In its letter opinion, the court included the following finding,
which is the focus of Hartmann's appeal:

"The City Engineer reviewed the city's determination
that Mr. Hartman[n] was responsible for the sewer and the repairs. Based on
the relevant code provisions and the evidence available, the City Engineer
determined that the damaged sewer lateral had not been accepted by the city as
a public facility, which means it remained the responsibility of the property
owner it served. That decision by the City Engineer is supported by the
evidence in this record and the court reaches the same conclusion."

In his sole assignment of error on
appeal, Hartmann contends that "[t]he trial court erred by finding that
there was sufficient evidence that the sewer service lateral met the definition
of a 'private sewer service lateral' as that term was defined by [PCC 17.32.055(A)(3)]."
According to Hartmann, the definition of "private sewer service
lateral" is not phrased in the disjunctive as the city engineer and the
trial court concluded. Rather, in Hartmann's view, the definition plainly
requires that a sewer service lateral satisfy each of the three
paragraphs, which are joined with the conjunctive "and." Because
there was no evidence at trial to satisfy paragraph a. of the definition,
Hartmann argues, the trial court erred in accepting the city engineer's
conclusion that repair of the sewer service lateral was his responsibility
rather than the city's.

The Smiths offer a number of
responses, one of which is that Hartmann cannot demonstrate that the trial
court's factual finding, even if erroneous, substantially affected his rights.
SeeShoup v. Wal-Mart Stores, Inc., 335 Or 164, 179, 61 P3d 928
(2003); see also ORS 19.415(2) ("No judgment shall be reversed or
modified except for error substantially affecting the rights of a
party."). According to the Smiths, the judgment identically awarded them
the value of their business ($203,000) on each of their three claims,
but Hartmann's assignment of error relates only to the claim for breach of
lease. Their nuisance and trespass claims, they argue, do not depend on the
trial court's or the city engineer's construction of the city code, and are
therefore independent bases on which to affirm the judgment. We agree.

Hartmann nevertheless insists that
the nuisance and trespass claims rise or fall based on whether the city assumed
responsibility for the sewer service lateral. As to the nuisance theory, he
argues that he had "no duty to repair public property" and, thus,
there was no basis for concluding that he engaged in any negligent, reckless,
or intentional act in allowing the odor to reach the Smiths' restaurant. The
trespass theory, he maintains, is "essentially identical"; he allowed
his tenants to use the sewer system in the manner for which it was designed,
and "[s]uch use is not contrary to any duty of care nor is it the
responsibility of a private citizen to repair a public sewer system located in
the public right-of-way."

The issue regarding the
interpretation of the city code, as framed by Hartmann's assignment of error,
is not relevant to ownership interests in the damaged sewer service
lateral. Whether or not the city "assumes responsibility for inspection,
maintenance, and repair" of the sewer service lateral, Hartmann maintains
an ownership interest in the lateral. Said another way, a privately owned lateral
that falls outside the code definition of a "private sewer service
lateral" does not become "public property." Rather, it remains
a privately owned sewer service lateral, albeit one that the city agrees to
inspect, maintain, and repair. PCC 17.32.055.

For that reason, we conclude that
Hartmann's focus on the city code is, at least as to the nuisance and trespass
claims, misplaced. The Smiths presented evidence that Hartmann had an
ownership interest in the damaged sewer service lateral; that the lateral was
leaking sewage that came from Hartmann's building; that Hartmann was aware of
that fact; that the city denied responsibility and directed Hartmann to repair
the lateral; and that, when confronted with those facts, Hartmann allowed the
sewage odor to continue to damage the Smiths, his tenants, while he sparred
with the city. On those facts, a trier of fact could find that, regardless of
who bore responsibility for repairs under the city code, Hartmann had the
ability to control whether the odor from sewage from his building reached the
Smiths, and that it was unreasonable for Hartmann to allow the odor to continue
to damage the Smiths under the circumstances. For that reason, we conclude
that the evidence is sufficient to support the trial court's judgment on the
Smiths' claims for nuisance and trespass. See Carvalho v. Wolfe, 207 Or
App 175, 180-81, 140 P3d 1161 (2006) ("In order for the law to attach
liability to the operation of a purported nuisance, the plaintiff must allege
[that the] defendant's actions were intentional, negligent, reckless or an
abnormally dangerous activity. Raymond v. Southern Pacific Co., 259 Or
629, 634, 488 P2d 460 (1971). A trespass also requires that the intrusion be
intentional, negligent or the result of ultrahazardous activity. Martin v.
Union Pacific Railroad, 256 Or 563, 565, 474 P2d 739 (1970)."). (Quoting
Frady v. Portland General Electric, 55 Or App 344, 347, 637 P2d 1345
(1981).)

1.Hartmann
purchased the building from the Hicks, who had previously owned the building
through Pacific Development Group, Inc. (PDG). Hartmann, the
successor-in-interest to PDG, defended against claims by the Smiths. For
purposes of this opinion, we refer to Hartmann without distinguishing between
him, PDG, or the Hicks.

2.In a separate
action, PGE brought claims against Hartmann and the Hicks. Hartman then
initiated this action against Subway Real Estate Corp. and the Smiths for
unpaid rent, and the Smiths filed claims against Hartmann. The two actions
were consolidated, but PGE's claims were settled before trial. Although
Hartmann ultimately prevailed on his claim against Subway Real Estate Corp. for
unpaid rent, that claim is not at issue on appeal.

4.Hartmann
submits that the permits (Exhibit 268) were never offered or admitted at trial
and should, therefore, not be considered by this court on appeal. Although
Exhibit 268 is not listed in the exhibit index of the trial transcript, the
transcript itself (at page 1473) reveals that the exhibit was offered and
admitted, without objection, on the final day of trial.

5.Hartmann's
recovery against Subway Real Estate Corp. for unpaid rent was reduced based on
the trial court's finding that Hartmann had breached his lease. Subway Real
Estate Corp. is not a party to this appeal, and that aspect of the judgment is
not at issue in this case.